The Fourth Amendment: Obstacle Or Necessity in the Law of Arrest?

Journal of Criminal Law and Criminology Volume 51 Article 4 Issue 4 November-December

Winter 1960 The ourF th Amendment: Obstacle or Necessity in the Law of Arrest Caleb Foote

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Recommended Citation Caleb Foote, The ourF th Amendment: Obstacle or Necessity in the Law of Arrest, 51 J. Crim. L. Criminology & Police Sci. 402 (1960-1961)

This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE FOURTH AMENDMENT: OBSTACLE OR NECESSITY IN THE LAW OF ARREST?

CALEB FOOTE

The author is Professor of Law in the University of Pennsylvania. Prior to assuming his present position, Professor Foote was a member of the faculty of the University of Nebraska Law School. He has written extensively in the field of criminal law and procedure and is also a Consultant to the United Nations' Division of Human Rights.-EDrroR.

The assertion that conventional arrest law and in the deceptively sImple formulation of this pro- constitutional limitations unduly restrict police posal. It carefully sugar-coats a proposition which, activity is as old as our history. With the increases if accepted, would severely curtail individual in crime rates which have accompanied the de- rights in rejecting one of our oldest legal traditions velopment of modem urban civilization, the de- and which, at least in part, is almost certainly mands to accord the police more flexibility for unconstitutional. Like any good advocate's ques- action have grown steadily more insistent. tion, it is so worded that it seems to compel the Since the so-called Uniform Arrest Act was desired answer. The proposal purports to authorize first proposed in 1942, much of this controversy only "reasonable" police action-the custody of has centered upon a provision of that act which one who has "reasonably aroused police suspicion." would authorize a policeman to "stop any person Thus one who answers "No" is placed in the posi- abroad who he has reasonable ground to suspect tion of throttling "reasonable" police activity. is committing, has committed or is about to com- The catch, of course, is that the word "reasonable" mit a crime, and may demand of him his name, as used in this proposal and in the Uniform Arrest address, business abroad and whither he is going."' Act has a meaning all its own. Such a stopping would constitute not an "arrest" In the law of arrest and by long consititutional but a "detention," and the detention could be history, "reasonable" has been interpreted as the continued for two hours to permit further investi- equivalent of probable cause. An officer acts rea- gation. During that time the suspect could be sonably if, on the facts before him, it would appear searched for dangerous weapons. that the suspect has probably committed a specific The questions before us at this session of the crime. This is the context in which the word is conference are clearly based on this act. In an used in the fourth amendment and in most state important aspect, however, one of the questions arrest laws. Our cases sharply distinguish the posed is more explicit than the act. This particular reasonableness of an arrest on probable cause from question asks whether the police should be per- unreasonable apprehension grounded on "mere" mitted to search a detained person not only for suspicion. It might appear, therefore, that the weapons but also for other "incriminating evi- detention provision of the Uniform Arrest Act in dence." In this discussion I intend to treat to- the proposal before us is wholly innocuous-an gether the Uniform Act and the question framed officer can act on reasonable suspicion, i.e., proba- for us. ble cause, which of course he can do anyway with- The key question put for this session provides: out any change in the law. "In the absence of sufficient grounds for an In a very recent case construing the Uniform arrest, should the police have a right to stop Arrest Act's detention provision, the Delaware and question a person as to his identity and Supreme Court made such an equation. Appar- reason for being where he is, if the appearance ently unaware of what it was doing to the act in or conduct of that person has reasonably aroused the process, the court uttered the following dictum: police suspicion?" "We can find nothing in 11 Del.C., § 1902 The fine hand of the advocate can be detected [detention provisioni which infringes on the rights of a citizen to be free from detention I Warner, The Uniform Arrest Act, 28 VA. L. RFv. 315 (1942). except, as appellant says, 'for probable cause'. POLICE DETENTION AND ARREST PRIVILEGES

Indeed, we think appellant's attempt to draw to see how it advances the cause of legal analysis a distinction between an admittedly valid de- of this proposal on its merits. tention [conventional arrest] upon 'reasonable The most commonly accepted definition of an ground to believe' and the requirement of arrest, a definition which is incorporated even § 1902 of 'reasonable ground to suspect' is a se- in the Uniform Arrest Act, is "the taking of a mantic quibble.... In this context, the words person into custody in order that he may be forth- 'suspect' and 'believe' are equivalents." 2 coming to answer for the commission of an of- Such a construction of the Uniform Arrest Act, fense."'3 Custody is "an actual restraint of the of course, saves its constitutionality at the expense person to be arrested," which occurs at the moment of negating its whole purpose. Clearly this is in- an individual is no longer a free agent to do as he tended neither by the act, the objective of which pleases. The Constitution does not use the word was to increase and not just to restate police power, "arrest" but expresses the same idea in its refer- nor by the topic before us, which postulates "In ence to "seizure," an even more unambiguous the absence of sufficient grounds for arrest...", word. A seizure or arrest can be and often is of i.e., without probable cause. The word "reasona- short duration, and of course the fact whether it ble" as a qualifier of suspicion in these proposals is regarded or recorded by the police as an arrest must be understood to indude at least part of is irrelevant. To determine whether an arrest has what would be unreasonable under present law. taken place we look at the facts to see if there has It is perhaps poetic justice that this little decep- been "an actual restraint of the person." Often tion has backfired in its first court test. In any this is not easy to determine, as where an officer event, a more accurate posing of the question says to a pedestrian, "Just a minute, I want to before us would be: "Should a policeman be al- ask you a few questions." Were a civilian to ask lowed to stop and detain even if his action would such a question there would certainly be no re- be unreasonable under the fourth amendment or straint, but what on their face are merely words of the common law of arrest?" request take on color from the officer's uniform, Along with this misleading use of the term badge, gun and demeanor. The Uniform Arrest "reasonable" is another semantic sleight of hand Act, however, is unambiguous; the officer can which tends to obscure the real nature of the pro- enforce his request by forceably restraining for posed change. The chief draftsman of the Uniform up to two hours the suspect against whom there Arrest Act has stipulated (and our topic implies) is no probable cause. that this stopping for questioning and search Under the definition of arrest given above, the "is not an arrest" but is merely a detention. One only way in which such a restraint of a criminal can certainly understand the wish which has suspect can be viewed as a nonarrest is to quibble fathered this attempted distinction, for "arrest" over the qualifying phrase, ".... in order that he is a blunt word, implying stigma and dramatizing may be forthcoming to answer for the commission the instant at which the liberty of the citizen is of an offense." The most reasonable interpretation totally subjected to the power of the state. It has of this language would be that it merely distin- been our boast that under a democratic form of guishes a restraint the purpose of which is related government such awesome power can be exer- to the enforcement of the criminal law from the cised only on reasonable belief, i.e., probable cause, seizure of a lost child in order to return it to its and that this limitation constitutes a key link in parents, the enforcement of quarantine measures, the protection of the subject's liberty. It is no or the detention of a mentally ill person who re- wonder, therefore, that the authors have attempted quires care and treatment. to soften the sharp image of their proposed change There is, however, another possible interpreta- with a semantic curtain. They would have us tion which can be found from the bare words alone, believe that a taking into custody for questioning if one disregards obvious policy considerations, and search is not an arrest but something else, as common sense and a voluminous case law. Hun- if a change in the descriptive label of a concept dreds of tort cases to the contrary notwithstand- effects a change in the nature of the concept itself. ing, many police officers profess to believe that This is Madison Avenue at its best, but it is hard 3 ALI CODE or CRzNnAL PRocEDm §18 (1931). 2 De Salvatore v. State, No. 68, 1959 Term, Delaware For the same definition in the Uniform Act, see Warner, Supreme Court, June 3, 1960. supra note 1, at 344. CALEB FOOTE [Vol. 51

they have not "arrested" their prisoner until they search to the conclusion that the officer's knowl- have formally booked him on the police blotter. edge at the time gave him grounds for it. We In the recent celebrated Apalachin case in New have had frequent occasion to point out that a York, Judge Kaufman gives his judicial weight search is not made legal by what it turns up. to this view: In law it is good or bad when it starts and does "It is dear that a technical arrest demands not change character from its success." 6 an intent on the part of the arresting officer to In his recent book, THE CRIMINAL PROSECUTION bring in a person so that he might be put through IN ENGLAND, Lord Justice Devlin writes of the the steps preliminary to answering for a crime law from which both our common law of '4 arrest such as fingerprinting, booking, arraigning, etc." and the fourth amendment were drawn, and he He then proceeds to try to square this belief with puts this matter very well indeed: the fourth amendment by stating that "it cannot "The police have no power to detain anyone be contended that every detention of an individ- unless they charge him with a specified crime ual" is a seizure in the constitutional sense. As and arrest him accordingly. Arrest and imprison- the Apalachin case involved a roundup and de- ment are in law the same thing. Any form of tention of alleged Mafia conspirators, Judge Kauf- physical restraint is an arrest and imprisonment man was presumably not referring to non-criminal is only a continuing arrest. If an arrest is un- child welfare or contagious disease detentions, as justified, it is wrongful in law and is known as to which his statement would of course be true. false imprisonment. The police have no power 5 Aside from a misrepresentation of British law, he whatever to detain anyone on suspicion or for cites no authority for these sweeping assertions. the purpose of questioning him. They cannot It is apparent, however, that such a construction even compel anyone whom they do not arrest 7 is absurd, for inasmuch as it makes the officer's to-come to the police station." intent the controlling factor, it would substitute I have stressed the falsity of this alleged distinc- the policeman for court and law as a protector tion between arrest and detention because an of liberty. Seizures or arrests without probable awareness of it is essential to a complete under- cause would be illegal only if the officer ultimately standing of the nature and complexity of the pro- entered a formal charge of crime on insufficient posal before us. Probable cause as a standard to evidence; he would be within the law if the suspect guide the police and against which to measure the were released after imprisonment without having legality of an arrest or seizure is to be abandonned been booked, or if the period of detention turned in favor of some other as yet unformulated stand- up probable cause through search or detention ard more favorable to the police. It is true that the and only then did the officer decide to book him. detention-arrest permitted under the Uniform The short answer to such reasoning is that if Arrest Act would be limited in duration, and that Judge Kaufman is correct, then both our tort at the end of some time period such as two hours law of false imprisonment and the whole law of the arrest must be terminated unless by that time search and seizure developed by the United States the police have acquired sufficient evidence to Supreme Court in its construction of the fourth meet the conventional burden of probable cause. amendment are wrong. See, for example, Mr. But such a time limitation does not make the de- Justice Jackson's opinion for a unanimous Court tention any less an arrest for the period during in United States v. Di Re: which liberty is actually restrained in order to "The government's last resort in support of facilitate a criminal investigation. As the standard the arrest is to reason from the fruits of the of probable cause is embodied in the federal and 4United States v. Bonanno, 180 F.Supp. 71, 77 most state constitutions, it seems to me that we (S.D.N.Y. 1960). are talking about constitutional revision and not 5Judge Kaufman cites DEVLL, THE CRDMNAL PROSECUTION IN ENGLAND 31-62 (1960), on the British merely statutory enactment. That of course does practice of questioning suspects and the operation of the nQt automatically condemn it, for I suppose not Judges' Rules. He uses this material in the context of even the fourth amendment is sacrosanct enforced detention for questioning but neglects to make if im- reference to Lord Justice Devlin's important qualifica- perative policy considerations demand its revision. tion that the English police cannot use detention or compulsion for such questioning and that "it is up to 6332 U.S. 581, 595 (1948). the police to make sure that a man comes to the sta- 7DEVLrN, THE CRInMNAL PROSECUTION IN ENGLAND tion" for questioning "voluntarily." Id. at 68. 68 (1960). POLICE DETENTION AND ARREST PRIVILEGES

Reference to this constitutional issue, however, enjoy a relatively superior reputation for efficiency does point up the difficulty and gravity of the and respect for individual rights. This would sug- proposal. gest that when you are willing to pay enough to Underlying this whole discussion is the premise get a police force which is both adequately trained that the police as presently constituted are less and reasonably dissociated from politics, you can effective than they should be. I suppose this is obtain marked improvement in effectiveness. It probably true, although it is certainly not estab- would also suggest that the effect of restrictive lished by a high incidence of crime or low clear- law upon police activity may be just the opposite ance rates or the number of instances in which of what is generally assumed. One reason that the known criminals escape justice. In a democrary F.B.I. has been able to recruit a higher caliber of police effectiveness is measured even more by personnel is the public confidence it has built for what the police do not do than by their positive itself by operating within the law. The same has accomplishments: been said of British and Canadian police forces, "... the worth of a society will eventually be where the seed of lawful operation has led to a har- reckoned not in proportion to the number of vest of public respect and cooperation. criminals it crucifies, burns, hangs or imprisons, A related alternative which is less satisfactory but rather by the degree of liberty experienced in the long run but may be politically more ex- by the great body of its citizenry. There have pedient is to concentrate upon an increase in the never been more determined law enforcers than numerical strength and supervision of a police Nazi Germany or the Soviet.8 force instead of or in addition to efforts to improve Accepting the premise of ineffectiveness as true, overall personnel quality. During the last four however, it does not follow that the proposed months of 1954 the New York police conducted changes in the law of arrest are a prerequisite-or an experiment in their 25th precinct, an area of even the best way-to increased efficiency or that about one square mile with a population of 120,000 such changes will have any significant effect at and an extremely high crime rate. The number all. There is a measure of cynicism in the typical of patrolmen on duty was increased from 188 to advocacy of change, implying that present law 440, and the number of supervising sergeants, handcuffs the police, and that essential, routine, from 15 to 33. Proportional increases were made everyday police tactics which are now illegal should also in personnel of higher rank. Foot posts were receive the law's official sanction. The first argu- reduced in size to a point where the officer assigned ment assumes that the police are actually re- could reasonably be expected to observe all in- strained from necessary action by the law, but the cidents and conditions on his post, and the men second assumes action and inks for the removal of were held closely accountable for what happened. a stigma of illegality, immunization from the While the statistics are incomplete and may have presently nominal threat of false imprisonment defects because of the department's self-interest actions and protection of police evidence against in building a case for higher appropriations, the the onslaught of the exclusionary rule. No doubt total number of felonies reported in the precinct in some instances the law actually has the effect declined 55.6% from the comparable period of the of restraining action which would solve crimes, year before, while the clearance rate for felonies that the police generally already rose from 20.2% to 65.6%. No comparable changes but to the extent 9 stop, question, search and harass along the lines were reported in the rest of the city. proposed in the queries to this conference, it is The chief disadvantages of these alternatives hard to see how change in the law is going to have is that they cost money and require the exercise much effect on clearance or conviction rates. of political and administrative statesmanship, If the goal is improved law enforcement, there whereas enacting new arrest laws dffers the illusion are obvious alternatives to change in the law. One of doing something about crime without financial would be to improve the caliber of policemen, and or political complications and has a natural appeal it is certainly significant that the federal police to political expediency. I suspect that in police forces, which have to operate under the most work, as elsewhere, one generally gets no more restrictive legal "handcuffs" in the nation, also than he pays for, and that legislation on police 8 Schwartz, On Current Proposals to Legalize Wire- 9 NEw Yoiux Crry PouicE DEP'T OPERATION 25 tapping, 103 U.PA.L.REv. 157, 158 (1954). (undated, probably 1955). CALEB FOOTE [Vol. 51

power is a wholly inadequate substitute for respon- setts, state police stopped 400 motorists in a drive sible police fiscal and personnel policy. to catch residents who were buying their holiday The importance of seeking alternatives within cheer at cut rate New Hampshire prices and bagged the present legal framework is emphasised when one violator, described as "an elderly, bewildered one examines the impact of police arrest practices man."" A five hour roadblock on Chicago's south upon our constitutional respect for privacy. The side is reported to have involved stopping 1,190 right to be let alone-to be able sit in one's house cars, with a net catch of seven persons arrested or drive one's car or walk the streets without un- for narcotics investigation, five suspected drunken warranted police intrusion-is surely one of the drivers and six drivers who did not have licenses 12 most important factors to be weighed in achieving in their possession. a balance between individual liberty and public These are the minor surface manifestations of a necessity. Ironically, it is this factor about which very serious problem. Of much more importance we know the least. Although they are often in- are the spectacular round-ups of suspects after adequate, we collect at least some data on the major crimes and the routine daily investigations number of crimes reported, the number of crimes of suspicious characters, loiterers, past offenders cleared by arrest, and the mortality between and others deemed suspect or undesirable by charge and conviction. We also have figures pur- unarticulated police standards. The roadblock porting to state the number of persons "arrested," affects everyone indiscriminately and probably but usually this only reflects cases where the police does not develop any focused public resentment, have booked, fingerprinted and charged the sus- but these other activities are concentrated in pect. We cannot even guess at the true arrest poorer economic areas with high crime rates. The rate because we have no data on the number of police batting average here may not be as low as people whose liberty is restrained but who after in indiscriminate roadblocks, but is is probably investigation are released without charge. Under not very high. What does the right of privacy these circumstances to try to make an intelligent mean for such people in such neighborhoods? evaluation of how the right of privacy fares under What proportion of the total number of arrests present conditions and how proposed changes in is made up of persons abruptly arrested, investi- the law would affect it is very much like trying gated for minutes or hours or days, and as abruptly to compute batting averages when one knows only released without booking? What is the cumulative the number of hits for each player but has no data impact of a high ratio of mistaken "detentions" on numbers of times at bat. upon police public relations and the development Only occasionally, and then usually in news- of attitudes of active public cooperation with the papers or other unofficial sources, do statistical police? These and many other related questions. tidbits appear which cast glimmers of light. Re- urgently need to be answered if we are to be able cently, for example, the Baltimore Sun gave its to evaluate and reassess the role the police should "Policeman of the Year" award to the inventor play in our society. In our present state of ignor- of the "Battaglia plan."' 0 This hardly novel in- ance the hypothesis that the best interests of vention was to stop and "check" cars driven by democratic law enforcement demand stricter com- teenagers at night. The Sun reported that during pliance with the fourth amendment is at least as its first year of operation 157,000 cars were stopped plausible as the view that the standard of the in this operation, netting "more than 1,000 arrests" fourth amendment should be relaxed. for non-traffic offenses. How many of these arrests The last point I wish to make is that analysis of proved to be well grounded is not stated. Assum- any proposal to increase police power is handi- ing a figure of 1,000, and further assuming that capped because of the imprecision of what is being the cars averaged two occupants each, the Balti- proposed. After many years of discussion we are more police were making one hit for every 314 still left very much in the dark as to precisely persons "checked." The nature of the checking what is desired by advocates of reform. I have process is not described; for some it was doubtless "Boston Hearald, Dec. 22, 1959, p. 1, col. 1; id., only a roadside detention, but for others additional Dec.2 23, 1959, p. 3, col. 1. restraint may have been involved. In Massachu- ' See photostats of Chicago newspaper Clippings dated Sept. 11 and 12, 1954, reproduced in CHICAGO 10Baltimore Sun, Jan. 22, 1960. See especially lead MOTOR CLUB, THE CONSTITUTION-SHALL IT BE editorial, "The Captain's Plan." VIOLATED WHEN APPLIED TO MOTORISTS 8-9 (1954). POLICE DETENTION AND ARREST PRIVILEGES

already noted that the standard employed in the involve an incriminating admission to an officer's Uniform Arrest Act and in the queries for this first question. They are authority for the power session-reasonable suspicion-is meaningless if to ask a question but not for a restraint of one who reasonable is not equated with probable cause. declines to stop and talk. The case upon which And obviously it is not; it suggests only that there the so-called Maryland "accosting" rule is based, should be some undefined limitation upon the for example, qualifies the right to question upon police. If probable cause is no longer to be the lack of "coercion" by the police: "If he had been test, at least at the initial point of arrest, where merely passive and silent, when confronted with is the line to be drawn short of indiscriminate the sergeant's implied accusation, he would have police detentions on hunch? No greater service been immune from any police interference until could be rendered by advocates of change in the a warrant had been procured."' 3 In his discussion law than the formulation of specific standards of the British practice, Lord Justice Devlin em- illuminating the limits of the proposed buffer phasizes: "But it is up to the police to make sure zone which would lie between arrest on probable that a man comes to the station voluntarily.... .,14 cause and the protection of the individual from No doubt many people feel compelled to stop and intrusion based on nothing more substantial than answer when questioned by an officer, and the a policeman's hunch. unavoidable ambiguity in such a situation operates The factors suggested in this session's query to the officer's advantage. are a disturbing illustration of the difficulties of If the'suspect is in a moving automobile, how- such a formulation. An officer's impressions of a ever, there is no ambiguity. The officers cannot suspect's explanation of his "identity and reason ask a question as he drives past. They can follow for being where he is" are wholly subjective and the car until it is parked or perhaps stopped by a seem to suggest almost unlimited discretion in the red light, and then approach the occupant as they police. They are, moreover, reminiscent of the would a pedestrian; or they can forego the oppor- elements of common law vagrancy, an outmoded tunity to question; or they can stop the car. The relic of feudal class distinctions which has been last alternative is often the only practicable one, grossly abused by the police in dealing with socially and because the restraint involved in hailing a and economically disadvantaged elements of our car to the side of the road is much more direct society, but without whatever protection is af- than asking a question of a pedestrian it is here forded from the fact that vagrancy is a status that a right of detention on something less than offense which in theory can be established only probable cause would seem to be most likely to by repeated observation over a period of days "or arise. In Carroll v. United States, however, the weeks. Court equated the stopping or interruption of a Most of the limited judicial opinion which could car with a search and proscribed either except be enlisted in support of a detention drafting proj- upon probable cause: ect comes from automobile cases. As has been "It would be intolerable and unreasonable if a noted, the police today can question a pedestrian prohibition agent were authorized to stop every on the streets or go to a house to request an inter- automobile on the chance of finding liquor and view with a suspect. They can solicit a confession thus subject all persons lawfully using the high- or statement, bluff the suspect by pretending that ways to the inconvenience and indignity of such they already know he is carrying contraband, or a search.... IT]hose lawfully within the country, take advantage of the mere opportunity to ask entitled to use the public highways, have a right questions to induce the suspect to tip his hand. to free passage without interruption or search In England the police frequently invite a suspect unless there is [probable cause]. (Emphasis 5 to come to the police station for an interview, a added.)1 practice of which American police apparently have The later cases of Brinegar v. United States' 6 and not taken advantage. If such measures cause the Henry v. United States'7 have also been decided on suspect to make an incriminating admission or to the assumption that probable cause must exist try to dispose of incriminating evidence, an arrest 13Blager v. State, 162 Md. 664, 161 At. 1 (1932). on probable cause can follow. Most of the cases, 14Devlin, supra note 7, at 68. s267 U.S. 132, 153-4 (1925). incidentally, which are cited as purporting to 16 338 U.S. 160 (1949). authorize a power to "stop and question" a suspect 17361 U.S. 98, 103 (1959). CALEB FOOTE [Vol.51 before the car is stopped. No other justice joined threatened life and detect a vicious crime" from Mr. Justice Burton's concurring opinion in Brine- "a roadblock and universal search to salvage a gar suggesting the existence of an intermediate few bottles of bourbon and catch a bootlegger." zone which would warrant stopping a car for Narrowly drawn exceptions to the requirement questioning on evidence insufficient to justify a of probable cause to cover such emergencies would search. Neither this opinion nor the few cases have great merit but would have little bearing which have purported to apply it are helpful as on the everyday police problems to which our explorations of the possible limits of such a rule, topic invites attention. distinguishing it from roadblocks or other random Those of us who believe that the fourth amend- interruptions. ment's resolution of a very difficult problem Nor would the attempt to formulate standards through the formula of probable cause is as good for detention receive much useful guidance from a compromise as we can find are not likely to be discussions of hypothetical emergency situations convinced otherwise unless we can see how a such as the right of the police temporarily to detain power of arrest without probable cause would be one found near a fresh corpse, or Mr. Justice limited, how it would work in specific situations, Jackson's reference to the kidnapping of a child and how its proponents propose to deal with the constitutional obstacles to its validity. In the after which "the officers throw a roadblock about meantime, I am afraid that the pressing problem the neighborhood and search every outgoing which faces us in the law of arrest is not how to car ... ."18 Whatever the law may be in such situ- find ways to increase the power of the police. If il- ations, the reasonableness of the police action is legality in police arrests is as widespread as pres- conditioned by an immediatc crisis and would ent evidence would suggest, and existing sanc- have no general application. Mr. Justice Jackson tions against it as ineffective as I believe them to proceeds to qualify his illustration by distinguish- be, perhaps the appropriate queries for the next ing a roadblock which is "the only way to save a conference would be: Can we afford to enforce 1 Brinegar v. United States, 338 U.S. 160, 183 (1949) the fourth amendment and the law of arrest, and (dissenting opinion). if so, how?